Opinion
CIVIL NO. 99-3370(JBS).
August 7, 2000
Linda Wong, Esq., Daniel C. Fleming, Esq., Theresa Homisak, Esq., Wong Fleming PC, Edison, N.J., Attorneys for Plaintiff.
Lisa S. Grosskreutz, Esq., Heim, McEnroe Urciuoli, Floram Park, N.J., Attorney for Defendant Coalition Against Rape and Abuse, Inc.
Marc I. Bressman, Esq., Budd, Larner, Gross, Rosenbaum, Greenberg Sade PC, Cherry Hill, N.J., Attorney for Defendants Board of Chosen Freeholders of Cape May County, Office of the Prosecutor of the County of Cape May, Stephen D. Moore, and County of Cape May.
John J. Farmer Jr., Attorney General of New Jersey, By: George N. Cohen, Deputy Attorney General, Trenton, N.J., Attorney for Defendant Raymond Batten .
Frank L. Corrado, Esq., Rossi, Barry, Corrado, Grassi Radell PC, Wildwood, N.J., Attorney for Defendants The Herald Newspapers and Joseph R. Zelnik.
O P I N I O N
I. INTRODUCTION
In this civil rights, defamation, and wrongful discharge suit, plaintiff Teresa Downey, the former Executive Director of the Coalition Against Rape and Abuse (CARA), a non-profit agency that counsels sexual assault victims, has sued CARA, several Cape May County government officials, and The Herald Newspaper, Inc. (The Herald), claiming that defendants made or published statements critical of Downey's performance as CARA's director, and that these statements defamed her and led to the loss of her job.
In her complaint filed in this court on July 14, 1999, plaintiff alleges that defendants' actions constituted violations of the New Jersey Conscientious Employee Protection Act (CEPA) (Count I), intentional interference with contract (Count II), violation of her federal constitutional rights in violation of 42 U.S.C. § 1983 (Count III), defamation (Count IV), breach of contract (Count V), breach of the implied covenant of good faith and fair dealing (Count VI), and violations of the New Jersey Law Against Discrimination (NJLAD) (Counts VII VIII). Plaintiff's § 1983 claim is the sole basis for this Court's jurisdiction.
This matter is presently before the Court on defendants' respective motions to dismiss plaintiff's Counts II (Intentional Interference with Contractual Advantage), III (§ 1983), IV (Defamation), VII (NJLAD — wrongful termination), and VIII (Aiding Abetting Violation of NJLAD) pursuant to Rule 12(b)(6), Fed.R.Civ.P. for failure to state claims upon which relief may be granted. None of the defendants have specifically addressed plaintiff's CEPA and contract-based claims in Counts I, V, and VI.
As discussed herein, the Court finds that the majority of plaintiff's defamation allegations are barred by the relevant statute of limitations, and such allegations will be dismissed from Count IV with prejudice. The Court also finds that plaintiff has failed to state actionable claims under the NJLAD in Counts VII and VIII. Furthermore, the Court finds that plaintiff's claims of intentional interference with contract, aiding and abetting violation of the NJLAD, and § 1983 violations are unclear and are not pleaded with sufficient specificity that defendants have been put on notice of the nature of such claims. Accordingly, the Court will dismiss Counts II, III, VII, and VIII without prejudice to re-pleading. Because plaintiff's § 1983 allegations in Count III constitute the sole basis for this Court's jurisdiction, the Court will dismiss the remainder of the complaint pursuant to 28 U.S.C. § 1367(c)(3). This dismissal is without prejudice to plaintiff's filing within 30 days a motion for leave to file an amended complaint correcting the pleading deficiencies noted herein.
II. BACKGROUND
The alleged facts are as follows. In April 1997 CARA hired plaintiff as its Executive Director in order to administer the work of the organization and to vigorously advocate on behalf of victims of domestic violence and sexual assault in Cape May County. (Compl. ¶¶ 1, 18-19.) At the time of her appointment, plaintiff allegedly was already well known by the defendants as an outspoken critic of local government officials, largely due to her involvement in the Susan Negersmith case. (Id. ¶ 13.) The Negersmith case involved an incident where the Cape May County Coroner allegedly changed the cause of death of a young woman from accidental death to homicide. The Coroner made the change largely because plaintiff's public comments concerning officials' poor handling of the case brought immense pressure to bear on the County to re-open the investigation. (Id. ¶¶ 14-15.) Plaintiff also had in the past advocated for the elimination of the then 5-year statute of limitations for rape prosecutions. (Id. ¶ 14.)
The important consideration in deciding this Rule 12(b)(6) motion is whether the plaintiff has alleged facts which would constitute a legal claim, and not whether the alleged facts are true. The Court must accept as true all of the matters pleaded in the complaint, as well as reasonable inferences from those matters. Markowitz v. Northeast Land Co . , 906 F.2d 100, 103 (3d Cir. 1990). The facts here are therefore taken from plaintiff's complaint.
After plaintiff was named Executive Director of CARA in April 1997, defendant The Herald published an article on May 7, 1997 about her appointment, noting that plaintiff in the past "gave freeholders fits as she criticized the county's defense of former Coroner Dr. John Napoleon's handling of the Susan Negersmith rape-murder case." (Id. ¶ 16.) A newspaper reporter also sought comment from plaintiff, and asked her how she expected to get along with the freeholders after her involvement in the Negersmith case. Plaintiff responded "The freeholders and CARA have a common goal of reducing the incidents of domestic violence and sexual assaults. We will work with them toward achieving those goals." (Id. ¶ 17.)
In and around June 1997, as part of her job, Ms. Downey submitted to the State of New Jersey Department of Law Public Safety Criminal Justice Division several grant applications aimed at obtaining state funding. (Id. ¶ 20.) These grant proposals contained anecdotal information from CARA's clients, and were generally critical of law enforcement and the courts in Cape May County. Although the applications did not identify individuals by name, they advanced the position that Cape May County officials were not sufficiently sensitive to the needs of victims and failed to provide them with the relief to which they were entitled under New Jersey law. (Id. ¶ 22.)
Plaintiff believed that the grant application was supposed to be a confidential document. Nevertheless, Judge Batten, Cape May County law enforcement officials, and The Herald somehow received a copy of the grant application as it related to criticism of government performance.
Thereafter, plaintiff alleges, defendants Office of the Prosecutor of Cape May County, Moore and Batten, knowing that they were criticized in the grant applications, engaged in a pattern of verbal attacks on plaintiff's performance at CARA and CARA's work generally. (Id. ¶ 26.) As part of this pattern, defendants publicly and personally criticized plaintiff at meetings, and "caused local newspapers to publish and/or embellish on their criticisms of her", for the purpose of disparaging plaintiff, destroying her professional reputation, interfering with her employment at CARA, and depriving her of her rights of free speech, due process and equal protection. (Id.)
Plaintiff specifically alleges that Judge Batten and Moore verbally attacked plaintiff at a meeting of the "domestic violence working group" which was held for the sole purpose of discussing how the legal system might more effectively address the rights of victims of domestic violence. There, plaintiff alleges, defendants Judge Batten and Moore caused to have placed before each person present a copy of the Herald Newspaper story in which Moore and several Cape May County police chiefs criticized plaintiff for her criticism of Cape May County law enforcement in the above-described CARA grant application. (Id. ¶¶ 27-28.) Plaintiff alleges that Judge Batten went on to publicly admonish her for criticizing him, asking her how could she have done this to him, stating that she was being unfair, that she should personally respond to each allegation made in The Herald's story, that she had committed a disservice to everyone at the present meeting, and that he would be requesting a meeting with the board of trustees of CARA to discuss the grant application. Plaintiff also alleges that defendant Moore at this meeting stated that plaintiff did not know what she was talking about, that he considered this a personal attack against him and Batten, that he was siding with Judge Batten on this matter, and that she should respond to the criticisms she made in the grant application. (Id. ¶ 28.)
Plaintiff also alleges that Judge Batten acted under color of state law in preparing written correspondence to her which further criticized her professionalism and her criticism of him and local officials in her grant application, and caused the publication of the letter by newspapers and others who had no reason to know of the letter's existence but for Judge Batten's transmission of the letter to them. (Id. ¶ 29.) Plaintiff alleges that Judge Batten issued this letter on official letterhead and signed it in his official capacity, "J.S.C.", so that its intended readers would be more likely to believe the letter's contents because it came from a judge. (Id.) In concert with this letter and in an effort to destroy plaintiff's position at CARA, plaintiff alleges, Judge Batten began refusing to refer domestic abuse matters to CARA, which he had done regularly before plaintiff's alleged criticisms of him were made public. (Id.) CARA was the only agency designated and publicly funded to handle counseling and other social services for victims of domestic violence and sexual assault. (Id.)
Plaintiff also alleges that defendants Cape May County, Batten, Moore, the Herald, and Zelnik publicly and falsely accused plaintiff of refusing to cooperate with law enforcement officials to combat domestic violence and sexual assault. According to plaintiff, these defendants falsely accused plaintiff of canceling meetings with Judge Batten and other law enforcement officials, and causing friction with local law enforcement officials and the court. Plaintiff claims that these allegations of missed meetings left the public with the impression that she was divisive in her position as Executive Director of CARA when plaintiff had not canceled any such meetings, and plaintiff had allegedly tried to meet with Judge Batten and other Cape May County officials on several occasions. (Id. ¶¶ 30-31.)
Plaintiff also alleges that defendants the Freeholders of Cape May County, the Office of the Prosecutor, The Herald, Zelnik, Moore and Batten during this same time period caused to be published several disparaging newspaper articles that grossly exaggerated or made up facts tending to tarnish plaintiff's professional reputation, and which were intended to cause her to lose her job at CARA. (Id. ¶ 35.) Among the articles published were the following:
• On October 1, 1997, defendant The Herald published Moore's criticisms of plaintiff:
"I'm losing hope we will be able to restore a working relationship with CARA in view of the fact that they have adopted, by their silence, the positions set forth by Ms. Downey. We are considering whether it would be of greater benefit to victims to be referred to counseling services which have not created such barriers to cooperation with other agencies . . . [Such as] [t]he courts, local police, the prosecutor, victim witness [sic], [and] the hospital."
• On October 22, 1997, The Herald published a story entitles "Judge: CARA's Charges `Uninformed' — Batten says Downey Never observed Court Proceedings She Criticized". This story excerpted the following portion of Judge Batten's letter to plaintiff concerning the grant proposal: "I invite informed and constructive criticism, but I will not allow uninformed and ill-intended criticism to flourish in the name of unfettered and irresponsible advocacy."
• On July 16, 1997, The Herald published an article in which Cape May County Official Ralph Sheets referred to plaintiff's grant application as "unprofessional" and also quoted official Gerald Morton as stating "he was concerned `about the way some employees left' and he was `concerned about Terry Downey's credentials.'"
(Id. ¶¶ 35(a)-35(g).)
The CARA Board of Directors terminated plaintiff from her position at CARA in or around July 1998. Nevertheless, The Herald continued to publish articles critical of her tenure at CARA. For example, on July 22, 1998, The Herald published an article headlined "CARA Ousts Downey, 2 Resign from Board", in which the newspaper declared "Downey leaves in her wake ruptured relations with the county, the courts, the office of the County Prosecutor, and County law enforcement officials, all of whom play a important roles in the agency's mission". The article also noted that "Superior Court Raymond A. Batten urged Downey to attend the family court whose operations she had criticized, but she reportedly said she didn't have time." (Id. ¶ 35(o).) In this same edition of The Herald, defendant Zelnik wrote an opinion piece stating, "We don't know if the CARA board sacrificed Downey because it was tired of her recalcitrance, because of a staff revolt, or because it finally concluded that a persistent attitude of opposition was not the best way for the agency to perform its mission. But the main thing is, that it fired her." (Id. ¶ 35(p).) Another post-termination column appeared in The Herald on October 14, 1998 stating that "there was no harmony or dialogue between the agency and law enforcement" when Downey was Executive Director of CARA. (Id. ¶ 35(r).) In response to this stream of articles from The Herald, plaintiff alleges, certain board members of CARA wrote the Editorial Board at the Herald admonishing it for publishing "one-sided, slanted" articles which disparaged plaintiff and the agency. (Id. ¶ 36.)
In her complaint filed in this Court July 14, 1999, plaintiff claims that the above-detailed events were the result of a "campaign" intended to disparage plaintiff, interfere with her employment, and to cause the withholding of funding and resources from CARA. (Id. ¶ 37.) As a result of defendants' actions, plaintiff alleges, members of the board of CARA were left with the false impression that plaintiff was not effectively performing her job duties, and accordingly took adverse employment actions against her.
III. DISCUSSION
Plaintiff's Noncompliance With Local Rule 7.2(b)
At the outset, the Court notes that three of plaintiff's four responsive briefs fail to conform with this Court's rules concerning brief length. Plaintiff is instructed to adhere to the local rules in future submissions.
Local Civil Rule 7.2(b) provides that briefs submitted to this Court shall not exceed 40 pages unless specifically authorized by a Judge or Magistrate Judge. Despite not having received permission to do so, plaintiff has submitted substantially overlong briefs to this Court. Plaintiff's Brief in Opposition to The Herald's Motion to Dismiss is 58 pages in length. Plaintiff's Brief in Opposition to the Motion to Dismiss of the Cape May County Prosecutor, et al . , is 51 pages in length. Plaintiff's Brief in Opposition to Judge Batten's Motion to Dismiss is 49 pages in length. While the Court presently exercises its discretion under L. Civ.R. 83.2 to relax these requirements, plaintiff is directed to strictly follow Local Rule 7.2(b) in future submissions to this Court.
B. Standard of Review
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). A court may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The question before the court is not whether the plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50 n. 3 (1984) (quoting Conley, 355 U.S. at 47).
D. Plaintiff's Defamation Claims (Count IV)
The gravamen of plaintiff's complaint is that defendants' scheme of continuously disparaging her professional reputation led CARA to wrongfully terminate her from her position as Executive Director of CARA. All Defendants except CARA have moved to dismiss plaintiff's defamation-based claims because: (1) the majority of plaintiff's defamation claims are barred by the applicable statute of limitations; (2) that plaintiff is a public figure thus all relevant statements are constitutionally protected; and (3) the statements about which plaintiff complains are non-defamatory. As will be discussed below, the Court finds that most of plaintiff's defamation claims are time-barred. Accordingly, the Court need only examine the proffered defenses as they relate to statements published after July 14, 1998.
1. Statute of Limitations Issues
Defendants first argue that the majority of plaintiff's defamation claims are barred by the statute of limitations. Under New Jersey law, which provides the substantive law for plaintiff's defamation claims, slander or libel actions must be brought within one year of discovery.See N.J.S.A. 2A:14-3 ("Every action for libel or slander shall be commenced within 1 year next after discovery of the alleged libel or slander.")
In her complaint, plaintiff references allegedly defamatory statements from as early as April 1997. She filed her complaint in this Court on July 14, 1999. Plaintiff does not deny that she was aware of the allegedly defamatory statements, of their publication, and of some injury at the time the statements were made. On the face of plaintiff's complaint, then, all of plaintiff's claims premised on statements made prior to July 14, 1998 are barred by the statute of limitations and must be dismissed. For instance, plaintiff references 18 different articles published in The Herald. (Herald Br. at 11.) Thirteen (13) of the 18 were published prior to July 14, 1998, and thus plaintiff's claims arising from these 13 articles are presumptively barred.
Plaintiff acknowledges that her complaint is facially untimely with respect to the pre-July 14, 1998 statements and articles, but argues that these claims still should survive defendants' motion to dismiss on two separate grounds. First, plaintiff maintains that the pre-July 1998 statements should be considered actionable because they were part of a "continuous campaign with the goal of ruining Ms. Downey", and that the statements and articles at issue should be treated as one wrong for the purposes of the statute of limitation. (Pl. Br. in Opp'n to Herald Mot. to Dismiss at 43.) In the alternative, plaintiff argues that the one-year statute of limitation is not applicable here because plaintiff has stated claims of "trade libel", or malicious interference with business, which are subject to a two-year statute of limitation. (Id.) For reasons now discussed, these theories are unavailing, and will not prevent the dismissal of plaintiff's allegations concerning pre-July 1998 statements.
Plaintiff first argues that the allegedly defamatory statements at issue here are part of one continuous tort, and thus the statute does not begin to run until after the last statement was made. Plaintiff's "continuing tort" theory has not been recognized in New Jersey. New Jersey has adopted the "single publication" rule, under which a plaintiff has a cause of action for each separate publication of allegedly defamatory statements, as opposed to a larger cause of action for the aggregated publications. See Barres v. Holt Rinehart and Winston, Inc., 131 N.J. Super. 371, 390 (Law Div. 1974), aff'd, 141 N.J. Super. 563 (App.Div. 1976), aff'd 74 N.J. 461 (1977). New Jersey's adoption of the single publication theory demonstrates that under this state's law, the statute of limitation cannot be extended simply because a defendant later publishes additional statements to which a plaintiff objects. Each defamatory statement or publication is separately actionable, and the statute begins to run upon publication.
At least one court has specifically rejected the theory of "continuing defamation". In Wallace v. Skadden Arps Slate Meagher Flom, 715 A.2d 873, 882 (D.C.App. 1997), the District of Columbia Court of Appeals held that any defamation claims accrued at the time of the statement's publication, and rejected plaintiff's theory that defendants' defamatory statements were all part of a single course of conduct, and the statute of limitations did not begin to run until after the conduct ceased following plaintiff's discharge. The Court's research has not unearthed any authority supporting plaintiff's continuous tort theory, and is satisfied that the New Jersey courts would specifically reject the "continuous defamation" theory of recovery.
The Court also rejects plaintiff's argument that the two-year statute of limitations for "trade libel" applies here. Under New Jersey law, the claims of defamation and trade libel are entirely distinct theories of relief. The gist of a defamation claim is that statements have caused injury to reputation. See Gnapinsky v. Goldyn, 23 N.J. 243, 252-3 (1957). Trade libel, on the other hand, involves a tort "only loosely allied to defamation", being premised on damage to a business rather than damage to reputation. See Henry V. Vaccaro Construction Co. Inc. v. A.J. DePace, Inc., 137 N.J. Super. 512, 517 (1975) (quoting Prosser, Torts § 128 at 915 (4th Ed. 1971)). Plaintiff's attempt to recast her defamation-based claims as claims of trade libel borders on disingenuous. The complaint plainly states claims of defamation, rather than trade libel. (See Count IV, Defamation ¶ 67 (defendants "defamed the professional reputation of Ms. Downey")). Even given a most liberal reading, plaintiff's complaint does not center on statements which damaged a business, but rather focuses on statements which allegedly damaged her standing in the community and her professional reputation. To give plaintiff's complaint the effect she seeks would be to convert to trade libel all defamation claims alleging damage to a person's professional reputation. The Court declines to permit the tort of trade libel to swallow defamation jurisprudence whole. Accordingly, the limitation period applicable to plaintiff's complaint is the one year provision for defamation in N.J.S.A. 2A:14-3, and any claims arising from statements made prior to July 14, 1998 will be dismissed with prejudice from Count IV of the complaint.
This dismissal does not prejudice plaintiff's ability to use the pre-July 1998 statements and publications as evidence probative of other aspects of her complaint.
2. The Public Figure Doctrine and Related Defenses
The remaining allegedly defamatory statements in this case are those which were published after July 14, 1998. As taken from plaintiff's complaint, the post-July 14, 1998 publications are as follows:
3. The July 22, 1998 article in The Herald headlined "CARA ousts Downey, 2 resign from Board";
4. The July 22, 1998 opinion piece by defendant Zelnik stating "the main thing is, that [CARA's board of directors] fired her";
5. An August 5, 1998 report in The Herald noting that plaintiff had caused "splintered relations" with the courts and law enforcement;
6. The October 14, 1998 column in The Herald stating that "there was no harmony or dialogue between the agency and law enforcement" when Downey was at CARA's helm;
7. A January 13, 1999 article in the Herald making mention of plaintiff being "fired".
Turning to considering the validity of defendants' proposed "public figure" defense as it relates to these remaining allegations, the Court finds that, while plaintiff may eventually be proven to be a public figure, dismissal on this ground would be premature at this stage.
The law in this area is well settled. Defamation is difficult to prove when the statements at issue revolve around a matter of public concern. Speech concerning matters of public concern is afforded strict First Amendment protection. See Boos v. Barry, 485 U.S. 312, 318 (1988);Connick v. Meyers, 461 U.S. 138, 145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982). Moreover, public officials and public figures are afforded lessened degrees of protection against libel and defamation, and statements concerning such figures will be actionable only where they were knowingly false or made with reckless disregard for their untruth. New York Times v. Sullivan, 376 U.S. 254, 270 (1964). Accordingly, an important issue to be decided is whether plaintiff in this case is a private or a public figure.
The parties dispute whether Ms. Downey is in fact a public figure for the purposes of the First Amendment. While defendants maintain that it is clear that plaintiff is a public figure (see e.g. Herald Br. at 7-8), plaintiff has not alleged in her complaint that she is, and denies such status. (Pl. Br. in Opp'n to Herald Mot. at 25.)
While it may be true that, as defendants note, New Jersey law encourages early disposition of public figure defamation cases, disposition at this early stage still would be premature. For example, even in Maressa v. New Jersey Monthly, 89 N.J. 176, 196-98 (1992), a case prominently cited by the defendants for the proposition that the trial judge should determine public figure status as a matter of law, and that such determinations should be made early in the case, the public figure determination was made after discovery. In Maressa, the New Jersey Supreme Court spoke only to the utility of summary judgment proceedings to bring to an end meritless libel actions. Id. at 196. It is evident that the Maressa court did not mean that public figure status should be determined from the pleadings. Id.
Here, plaintiff has not alleged that she is a public figure. Whether plaintiff attained such status during the relevant time period is a question of fact that can only be determined after further development of the record. Moreover, although it seems quite likely that defendants will so prove, it remains to be established via discovery that plaintiff's leadership at CARA was in fact a "matter of public concern". At this stage, plaintiff is entitled to the reasonable inference that The Herald published the articles concerning Ms. Downey's performance as part of its desire to remove her from her position rather than out of a desire to satisfy the public's interest in the story. In sum, the Court will not dismiss plaintiff's remaining defamation allegations pursuant to the public figure doctrine. The Court likewise will not entertain defendants' arguments that the remaining statements are either non-defamatory or privileged. Such arguments are fact-sensitive and raise issues of disputed fact that cannot be resolved on a motion to dismiss. Accordingly, the Court will not dismiss plaintiff's remaining defamation allegations. This denial is without prejudice to defendants again raising this issue after further discovery pursuant to a motion for summary judgment.
The Court is obliged to note that after merits discovery has been completed, defendants' public figure and/or "matter of public concern" defenses probably will succeed upon a motion for summary judgment. It appears exceedingly likely that, by (1) positing that Cape May County and its officials had not done enough for women's issues, (2) including these concerns in a grant proposal, (3) submitting this grant proposal to the New Jersey Department of Law Public Safety, a public agency, for (4) the purpose of obtaining public funds to combat the issue plaintiff had thrust the subject matter of the grant application into the public domain, thus making her views, and the ensuing debate, a matter of public concern.
E. Plaintiff's Intentional Interference with Economic Advantage Claim (Count II)
The Court next turns to evaluate whether plaintiff has stated a viable claim of intentional interference with contractual advantage. Plaintiff contends that the allegedly defamatory statements at issue in this case are components of a concerted effort by all defendants to interfere with her employment with CARA. As the Court understands plaintiff's argument, she maintains that all the challenged statements at issue in this case, including the opinion pieces appearing in The Herald, flowed from defendants' common effort to interfere with plaintiff's employment. (See Pl. Br. in Opp'n to Herald Mot. to Dismiss at 35 (The Herald "surreptitiously" received a copy of the grant application; defendants acted in concert with each other to "receive information that was not public").)
The scope of plaintiff's intentional interference and aiding/abetting claims is expansive. The intentional interference count includes all defendants in its sweep, and the aiding/abetting claim includes all defendants except CARA. For reasons now discussed, the Court finds that plaintiff's complaint does not adequately allege the foundation of her claim that all defendants partook in a "vicious campaign" to deprive plaintiff of employment. (Compl. ¶ 25.)
It is not clear from the complaint whether plaintiff is alleging that all defendants actually conspired to deprive her of her federal rights, or whether they were acting separately but with the same aim. For example, without a tangible allegation that the defendants conspired to engage in a campaign of disparagement, it is not at all clear how the prosecutor, Judge Batten, and the County of Cape May could have caused the publication of newspaper articles in a privately run paper. Without a clearer statement of the nature of plaintiff's claims, the defendants cannot be said to have received adequate notice of the nature of plaintiff's claim that they were involved in publishing the allegedly defamatory statements at issue.
A review of the complaint shows that the words "conspiracy", "concert of action" or "collusion" never once appear, and plaintiff has not pleaded a separate cause of action for conspiracy. Under the standards of Rule 9(b), Fed.R.Civ.P., conspiracy claims must be pleaded specifically, and cannot be inferred from general allegations in the complaint. Conspiracy must be pleaded with specificity. Kronfeld v. First Jersey National Bank, 638 F. Supp. 1454, 1468 (D.N.J. 1986). The complaint must set forth facts from which an agreement between the conspirator and wrongdoer can be inferred. Id. at 1468. Although "great specificity is not required with respect to allegations of scienter, . . . plaintiffs [must provide] at least a minimal factual basis for their . . . allegations". Connecticut National Bank v. Fluor Corp., 808 F.2d 957, 962 (2d Cir. 1987); City of Harrisburg v. Bradford Trust Co., 621 F. Supp. 463, 475 (M.D.Pa. 1985).
Plaintiff's complaint does not contain the requisite specificity for a concert of action or conspiracy claim. The complaint does not allege a single fact concerning who was party to an agreement that defendants would destroy plaintiff's reputation by issuing statements maligning her reputation, nor does it state when such an agreement was made.
The lack of specificity in the complaint is conspicuous. To merely allege the general role that each defendant played in the scheme to remove plaintiff from her post--e.g., that Judge Batten delivered copies of the grant proposal to participants at a meeting, or that the Herald published stories critical of plaintiff — is not sufficient. Plaintiff must delineate in what manner the defendants played these roles, and must set forth the factual basis for her theories as to each defendant's part in the alleged scheme to remove her from her job. Because she has not done so, the Court will dismiss her claims in Count II.
As discussed below, plaintiff's NJLAD claims also will be dismissed for failure to state a claim actionable under that statute. In the event that plaintiff's claim concerning defendants' aiding and abetting violation of the NJLAD in Count VII is later revived, however, plaintiff will be expected to plead that Count in terms consistent with the requirements of this Opinion.
F. Plaintiff's § 1983 Claim (Count III)
Defendant Judge Batten has moved to dismiss plaintiff's § 1983 claim pursuant to the doctrine of qualified immunity. For reasons now discussed, the Court finds that Judge Batten's qualified immunity motion is premature. Nonetheless, plaintiff's Count III fails to give defendants adequate notice of the nature of her § 1983 claims, and therefore must be dismissed pursuant to Rules 8 9, Fed.R.Civ.P.
The Court first addresses Judge Batten's qualified immunity arguments. The qualified immunity test is an objective one, and "governmental officials performing discretionary functions generally are shielded from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow, 547 U.S. at 817-18. When material facts are not in dispute, the district court may decide whether a government official has established the defense of qualified immunity as a matter of law. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Judge Batten bases his qualified immunity argument primarily on the assumption that the defamatory statements at issue are non-actionable statements concerning a public figure and a public matter. (See Batten Br. at 29-30.) As explained above, the Court declines to make a public figure determination at the motion to dismiss stage.
The first inquiry in assessing a qualified immunity defense is whether the plaintiff alleges that Judge Batten deprived her of a clearly established constitutional right, see Siegert v, Gilley, 500 U.S. 226, 230 (1991), of which a reasonable judicial officer should have known. Unfortunately, plaintiff's complaint is so muddled as to the nature of her alleged constitutional deprivation that this Court is unable to address the qualified immunity defense. While the Court is sensitive to the proposition that qualified immunity is an immunity from having to defend against suit, which should be determined at the earliest stage,see id., it is apparent that plaintiff's § 1983 complaint is not in a form sufficient to enable adjudication. One simply cannot read it and make sense of the precise rights of constitutional dimension that Teresa Downey alleges Judge Batten infringed. Judge Batten's motion to dismiss on grounds of qualified immunity will be dismissed without prejudice to renewal in the event that files an Amended Complaint, as now discussed.
The Court finds that plaintiff's § 1983 claims in Count III must be dismissed. For reasons now discussed, the Court finds plaintiff's § 1983 count is deficient for three main reasons. First, Count III does not give adequate notice of the nature of the alleged Constitutional deprivations at issue. Second, this Count inadequately sets forth the basis for plaintiff's claim that the state actors acted in concert to deprive her of her rights. Third, because plaintiff has stated claims against individual official defendants, not just the County of Cape May itself, such claims must be pleaded with more specificity. The Court will discuss these deficiencies in turn.
The first reason plaintiff's Count III fails is that it fails to adequately describe the nature of the Constitutional deprivations at issue. It is well settled that not every injury inflicted by a state official is actionable as a deprivation of federal rights, and that defamation alone, even if committed by a public official, is not actionable under § 1983. See Paul v. Davis, 424 U.S. 693, 698-99 (1976). Thus, plaintiff in her complaint must allege harm beyond the fact that she was defamed. Under the liberal standards of Rule 8, Fed.R.Civ.P., all that is required of a § 1983 complaint is a short and plain statement of the claim. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993). Even under the generous notice pleading requirements of Rule 8 and Leatherman, however, plaintiff has failed to state the nature of the constitutional harm she allegedly has suffered.
Plaintiff has alleged that the defendants deprived her of her First Amendment, Due Process, and Equal Protection rights. (Compl. ¶ 64.) With respect to plaintiff's allegation that defendants' conduct deprived her of her First Amendment rights, plaintiff has not alleged that her right to free expression was directly constrained by an official order. The most favorable inference to be drawn is that plaintiff means to allege that, in allegedly succeeding in their alleged scheme to remove her from her job, the defendants deprived plaintiff of the platform from which she advocated on behalf of equal rights for women. The problem with such a theory is that plaintiff repeatedly in papers submitted to this Court has asserted that she sought to avoid the public spotlight, and did not publicly spearhead an effort to gain equal treatment for women in Cape May County. (See generally, Pl. Br. in Opp'n to Herald Mot. at 25-28.) If, as she seems to argue in her papers, plaintiff was not in the practice of publicly advocating to reduce domestic violence and sexual assault in Cape May County, what public platform did she lose when she lost her job at CARA? Absent the deprivation of a right to be heard on a public issue, it is difficult to discern the origin of plaintiff's First Amendment claim.
The complaint also fails to identify the origin of an alleged Due Process violation. Neither procedural nor substantive due process fit the allegations. Plaintiff has not alleged that she was at any time a public employee, thus there is not a reasonable inference to be made that plaintiff had a property interest in her position at CARA. Absent a property interest in a public job, it cannot be inferred what substantive due process plaintiff was denied when she was fired from her job with CARA. Moreover, plaintiff has not alleged that she was deprived of her job due to a lack of procedural due process, and it does not appear that the state actors owed plaintiff any such any such process. Because plaintiff's § 1983 claim does not state what process was due, nor what process the defendants' actions denied her, Count III does not give adequate notice of the nature of a due process claim.
The complaint also fails to give notice of the nature of plaintiff's Equal Protection claim. It cannot reasonably be inferred that plaintiff, a white female, was fired because of her race or gender, and no such allegation appears on the face of plaintiff's complaint.
The second main reason that plaintiff's § 1983 Count fails is that she has made only conclusory allegations of concerted activity. In her complaint, plaintiff declares generally that the state actors' conduct described in the complaint was part of a "pattern, practice or custom of [Cape May County] which were either adopted, formally or in fact." (Compl. ¶ 63.) This aspect of plaintiff's complaint is too vague to give adequate notice of the nature of the pattern or practice at issue. Plaintiff has not described the pattern or practice at issue. The most favorable inference to be drawn is that plaintiff means to allege that the official defendants' desire to have plaintiff fired is tantamount to an official policy. The problem with such a theory is that plaintiff has not adequately pleaded such a "concert of action" theory. As stated above in section III.E, it is unclear whether plaintiff's theory is that all the Cape May Officials conspired together, or whether they were separately acting with the same goal in mind — to remove plaintiff from her post at CARA. In the context of a § 1983 claim, plaintiff's obligation is to give notice whether or not the defendants acted in concert to deprive her of her federal rights. The need for allegations concerning an alleged agreement among the defendants is particularly acute where, as here, the case involves a mix of official and private defendants. As the Tenth Circuit Court of Appeals has recently observed, "When a plaintiff in a § 1983 action attempts to assert the necessary `state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action." Scott v. Hern, ___ F.3d ___, 2000 WL 726442 *4 (10th Cir. 2000) (citing Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). See also Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir. 1998) (complaint alleging concert of action by state actors must contain more than conclusory allegations devoid of facts reflecting joint action). Because here plaintiff has alleged that the state defendants were part of a "vicious campaign" to interfere with plaintiff's employment, and that this action constituted a deprivation of plaintiff's federal rights, she must more clearly plead her allegations of concerted activity.
The third main reason plaintiff's § 1983 Count is deficient is that, even beyond her deficient concert of action claims, plaintiff has not pleaded her individual claims against the individual state actor defendants with adequate detail. Under Leatherman, claims against municipalities themselves are subject only to the notice pleading standards of Rule 8, Fed R. Civ. P. However, the Third Circuit has left open the issue of whether after Leatherman courts should require apply a heightened pleading standard where § 1983 claims involve individual defendants. See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1989) ("We . . . have no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials.") Seeking to resolve the Third Circuit's equivocation on this issue, several district courts have held that § 1983 claims are subject to a heightened pleading standard where it appears that the state actors might raise the defense of qualified immunity. See Verney v. Pennsylvania Turnpike Comm'n 881 F. Supp. 145 (M.D.Pa. 1995) (heightened pleading standard in § 1983 claims against individual defendants because they could raise qualified immunity as a defense); Briley v. City of Trenton, 164 F.R.D. 26 (D.N.J. 1994) (Leatherman's guidance applies only to action against the municipality itself, and Third Circuit precedent required it to apply a heightened pleading standard to § 1983 claims brought against individual defendants in their individual capacities); Ersek v. Township of Springfield, Delaware Co., 822 F. Supp. 218 (E.D.Pa. 1993), aff'd 102 F.3d 79 (3d Cir. 1996) (plaintiff must state which individual defendants were responsible for which wrongful acts). But see Bieros v. Nicola, 860 F. Supp. 223, 225 (E.D.Pa. 1994) ("a heightened pleading standard does not apply to civil rights actions against individual defendants").
Based on the foregoing discussion, the Court adopts the position that, inasmuch as a § 1983 claim purports to state claims against individual state actors in their individual capacities, even afterLeatherman a plaintiff must at least state which state actors are supposed to have committed what constitutionally harmful acts, including specification of the federal constitutional right claimed to have been infringed. A review of plaintiff's Count III shows that plaintiff has lumped all official defendants together with no specificity as to which defendant's conduct harmed her in what way. By failing to state with specificity which state actors caused her what constitutional harm, plaintiff has encumbered the defendants' ability to raise qualified immunity as a defense. Accordingly, plaintiff's inchoate § 1983 claims must be dismissed until such time as the complaint gives notice to the state actors of the nature of the claims against them through a suitable amended complaint consistent with this Opinion.
G. Plaintiff's NJLAD Claims (Counts VII VIII)
Defendant CARA has moved to dismiss plaintiff's Counts VII VIII, which assert violation of the NJLAD, and aiding/abetting such violation, respectively. As grounds, CARA argues that there is no indication in plaintiff's complaint that she was fired because of her gender. Rather, CARA points out, the pleading states only that plaintiff was fired because of her status as "an outspoken advocate for women's rights". Consequently, CARA contends that the complaint does not state an actionable NJLAD violation.
As set forth in the margin, the plain language of the NJLAD provides formidable protections against discrimination in the workplace, and prohibits termination from employment based on gender. On the face of plaintiff's complaint, there is no allegation that plaintiff was fired because of her gender, and plaintiff does not suggest that she is part of another protected class.
The NJLAD, originally enacted in 1945, provides (as amended) in relevant part:
It shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination: a. For an employer, because of the race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, [or] sex . . . of any individual to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment;
* * * *
d. For any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act. e. For any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so.
N.J.S.A. 10:5-12.
Despite the clear lack of any allegations of gender discrimination in the complaint, plaintiff in her brief argues that her NJLAD claims are valid because she has stated a claim of gender stereotyping, which has been recognized as actionable under New Jersey law. (See Pl. Br. in Opp'n to CARA Mot. to Dismiss at 8-9 (citing Zalewski v. Overlook Hospital, 300 N.J. Super. 202 (Law Div. 1996).)
The important consideration at this stage is whether plaintiff has alleged facts that, if proven, would constitute a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The Court is not required to accept as true unwarranted inferences and unsupported conclusions. Sadruddin v. City of Newark, 34 F. Supp.2d 923, 925 (D.N.J. 1999).
The Court finds that an inference of gender stereotyping cannot reasonably be drawn from plaintiff's complaint as it is presently worded, nor can it be inferred that plaintiff was fired because she engaged in an activity protected by the NJLAD. At this stage, the Court must look to the pleadings, not the parties' briefs. It is manifest that plaintiff's complaint alleges that she was fired because she was an advocate for women's rights. Such a theory is not actionable under the NJLAD. The NJLAD was intended to protect workers from being fired because of discriminatory animus, not to prevent individuals from being fired because their work involves advocacy of equal rights. Because plaintiff has not alleged facts in her complaint which, if proven true, would amount to an actionable claim under the NJLAD, her claims in Counts VII and VIII must be dismissed.
H. Plaintiff's Opportunity to Move for Leave to File an Amended Complaint
Because plaintiff may be able in good faith to make factual allegations to support her conspiracy and NJLAD claims, the court will afford her thirty days to file a motion for leave to file an amended complaint. If plaintiff does file such a motion, and if this motion is subsequently granted, plaintiff will be required to set forth the specific circumstances that form the basis for her concert of action allegations as they pertain to Counts II, III, and VIII. Moreover, if plaintiff seeks to establish that she was fired because of gender stereotyping claims in violation of the NJLAD, such a theory must be discernable from the terms of plaintiff's amended complaint. Plaintiff must have a good faith basis for any such submissions, consistent with the demands of Rule 11, Fed.R.Civ.P. Any amended complaint which asserts viable claims arising from the conduct, transactions or occurrences which are the subject of the original deficient complaint would relate back to the July 1999 filing date of that pleading.
Plaintiff should not read this instruction to suggest that she may in an amended complaint challenge the Court's holding that the majority of the original defamation claims were not brought within the one year statute of limitations.
CONCLUSION
For the reasons discussed herein, the Court grants in part and denies in part defendants' motion to dismiss certain aspects of plaintiff's complaint for failure to state a claim upon which relief may be granted. Because the majority of plaintiff's defamation allegations are untimely brought, the Court will dismiss plaintiff's Count IV with prejudice except to the extent that it relates to events occurring after July 14, 1998. Moreover, because the Court finds that plaintiff has not stated actionable claims in Counts II, III, VII and VIII, the Court will dismiss those Counts without prejudice to her filing within 30 days a motion for leave to file an amended complaint curing the deficiencies noted in today's Opinion. Finally, because plaintiff's now-dismissed claims in Count III constitute the sole basis for this Court's jurisdiction, the Court will dismiss the remainder of plaintiff's complaint without prejudice for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c)(3). This dismissal under § 1367(c)(3) is without prejudice to refiling any such unadjudicated claims arising at state law in the event plaintiff files an Amended Complaint. In the absence of an amended complaint in this Court, the plaintiff may assert any unadjudicated claims arising at state law is a state court of competent jurisdiction.
O R D E R
THIS MATTER having come before the Court on defendants' respective motions to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., and the Court having considered the parties' submissions;
IT IS this day of July, 2000 ORDERED as follows:
1. Plaintiff's Count IV (Defamation) is DISMISSED WITH PREJUDICE except to the extent that it involves events occurring after July 14, 1999;
2. Plaintiff's Counts II (intentional interference with economic advantage), III (violation of 42 U.S.C. § 1983), VII (violation of NJLAD), and VIII (aiding abetting violation of NJLAD) are DISMISSED WITHOUT PREJUDICE to plaintiff's opportunity to within 30 days move for leave to file an amended complaint consistent with today's opinion.
3. The Court having dismissed plaintiff's § 1983 claims in Count III, which are the sole basis for this Court's original jurisdiction, the remainder of the complaint is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367(c)(3).
4. All claims in this case having been dismissed as specified above, this case is CLOSED. No costs.